85 N.Y.S. 1064 | N.Y. App. Div. | 1904
Two grounds of error are urged by the appellant on this appeal, which in my opinion require a reversal of this judgment.
The first is that the evidence does not satisfactorily show that, the defendant Williams had notice that the mortgage which he purchased from Yan Dusen was not the first lien upon the fifty acres therein described.
Of course it is conceded on the part of the respondent that, if Williams had the right to rely upon the record and to assume that the facts were such as appeared therefrom, he would acquire the mortgage which he purchased as a lien prior to the mortgage of the plaintiff. Her mortgage appeared upon the record as having been fully paid and discharged as against all the lands described therein. And as a matter of fact it was so discharged. The discharge which was found there was in fact executed by her, and was a contract
She claims, however, that, although she did so discharge such fifty acres from the lien of her mortgage, she did not intend to discharge any more than the twenty-seven acres therein described, and that her discharge, as to the fifty acres, was executed through a mistake of the scrivener. And while she does not claim that Williams was ever informed before lie purchased the Yan Dusen mortgage that there was any mistake in the execution of such discharge, yet she claims that he had notice of a fact which was sufficient to put him upon inquiry and that if he, in good faith, had made such inquiry, he would have ascertained the error through which a discharge was put on record. Such notice was to the following effect: When the discharge was recorded, Caroline Rowe had title to the fifty acres, subject to the two mortgages, and continued to hold such title down to her death, which occurred sometime in 1902. In. October, 1893, she applied to Williams to purchase this mortgage from Yan Dusen, and at that time plaintiff claims that Fanny Rowe — her sister who was the widow of Jerome Rowe and the person-who had purchased the twenty-seven acres in 1887 (when the discharge was executed and recorded) — stated to Williams that “ my sister holds the first mortgage upon her property, and it has never yet been paid.” This statement is claimed to have been made in contradiction to a statement just made by Caroline that the Yan Dusen mortgage, which she was asking Williams to purchase and carry for her, was a first lien on the fifty acres. The claim rests entirely upon the testimony of Fanny Rowe, who clearly is not a disinterested witness, since she now claims to own more than a half interest in the plaintiff’s mortgage. Williams squarely denies that any such statement was ever made to him. In the following June, after having caused a search to be made of the records in the clerk’s office of Tompkins county, and discovering that the plaintiff’s mortgage had been discharged, and that there was no lien on the fifty acres prior to the Yan Dusen mortgage, and believing, as he testified, that such was the fact, he took an assignment thereof from Yan Dusen and paid the full amount due and unpaid thereon. Williams concedes that Caroline was introduced to him by Fanny Rowe, and has evidently forgotten when that occurred. It must be
On the other hand, in the letter of October 1¡9, 1903, which Williams Wrote to Yan Dusen concerning the reqiiest of Caroline RpWe that he purchase the mortgage, he says that he undeistands-that it is a first claim on the place, which is difficult to understand if he had recently been notified that Fanny Rowe’s sister held a mortgage ahead of it. Fanny Rowe’s testimony as | to, this notice is-not altogether convincing. If she so flatly contradicted Caroline Rowe in her statement that it was a first mortgage it is hardly credible that both Caroline and Williams would have paid no attention to her statement- and allowed her to go a Way without an explanation. If she Was correct, Caroline was making a false statement either dishonestly or ignorantly, and it is unlikely that Caroline would have allowed such a contradiction to1 stand without examination. Such a notice if given under such circumstances
And, moreover, I cannot understand what influence would have induced Fanny to so antagonize Caroline Rowe in her effort to bring about the purchase of such mortgage by Williams. When Fanny Rowe purchased the first mortgage for the plaintiff both she and the plaintiff knew that Caroline owned the fifty acres described in the Yan Dusen mortgage, and, therefore, thé discharge of the twenty-seven acres in that first mortgage as to her undoubtedly operated to discharge it as a lien on the fifty acres. It is conceded that the twenty-seven acres were ample to pay it. That they both understood it to be so I have no doubt, and, therefore, I think it very unlikely that Fanny Rowe ever attempted to interfere with Caroline’s plan, or that Caroline would have permitted her to do so had she attempted it. It is a significant fact that no interest was ever demanded from Caroline Rowe, or from any one else, upon the plaintiff’s mortgage after it was discharged of record. The conduct of all parties indicates that the plaintiff had no intent to in any way enforce her mortgage as against Caroline’s interest in the fifty acres.
- The further claim is made by the appellant that the plaintiff’s right to this relief is barred by the Statute of Limitations,
The plaintiff’s cause of action being based .entirely upon her own mistake, and there being no charge of fraud, section 388 of the Code, fixing the period of ten years as the limitation, controls (Sprague v. Cochran, 70 Hun, 512; Exkorn v. Exkorn, 1 App. Div. 124.) The action was brought some fourteen years af ter the mistake was made,.and hence under such section was clearly outlawed. But the plaintiff replies that such a defense is a “personal defenseand that, therefore, Williams may not plead it.
When the plaintiff executed the discharge and put it upon the record, she in effect Contracted with all parties who had an interest in the premises described in her mortgage that it was paid and that such premises were discharged from its lien. The instrument which, as she claims, she intended to execute was a contract with Fanny Rowe merely; but the oné which she did execute and deliver was with Caroline Rowe and Van Dusen, as well as with Fanny Rowe, and they were in effect parties to that instrument. It affected their
Moreover, Williams has the further defense against the plaintiff’s right to modify this discharge that, having relied upon it, she is estopped as against him from changing it. She replies that he had notice of the mistake. This he denies, and so an issue arises directly between them as to the very fact upon which she bases her right of action. It seems to me clear that the statute which bars her right to prove such fact and maintain this action after ten years is a statute in which he is directly interested and personal to him.
For these reasons I am of the opinion that whether or not Williams had the notice upon which the plaintiff’s right to reform this discharge is based, he may claim that the statute bars her right to compel him to litigate that question at this late day.
I do not examine the several other questions, both of law and of fact, which the appellant raises on this appeal. It becomes unneces-;
The judgment must be, reversed and a new trial granted, with costs’ to the appellant to "abide the event.
All concurred.
Judgment reversed on law and.facts and new trial granted, with costs to appellant to abide evént. . =